The High Court ordered Paula Smyth and Vincent Smyth to pay the Attorney General costs for five of the 16 days of their trial against the Railway Procurement Agency and Veolia Transport Dublin Light Rail Limited. The costs related to the Attorney General’s participation in a constitutional question raised in the proceedings.
In a judgment delivered on 17 June 2010, Miss Justice Laffoy said the Attorney General had succeeded on that question. She found no proper basis to depart entirely from the usual rule that costs follow the event. The plaintiffs had raised the constitutional issue in response to the defendants’ reliance on statutory authority for the operation of the Luas.
The underlying action was a private law claim in nuisance. The plaintiffs sought an injunction requiring the defendants to address alleged noise from passing trams behind their home, including by erecting an acoustic barrier. The defendants argued that the Luas was built and operated within the parameters permitted by the Line B Order and the relevant legislation, and that this could not give rise to the alleged nuisance.
The plaintiffs also argued that any common law immunity relied on by the defendants was inconsistent with their constitutional rights, or could not apply without compensation for noise affecting their home and property value. The judgment of 5 March 2010 had addressed the substantive action; the June judgment concerned only the Attorney General’s costs application.
The trial, initially estimated to last four days, ran for 16 days. The Attorney General’s counsel asked to remain throughout the evidence, arguing that the facts could bear on whether the asserted immunity proportionately vindicated the plaintiffs’ rights. The judge allowed the team to stay, with the possibility of reviewing that arrangement, but no review took place.
Looking back at the proceedings, the judge said the Attorney General’s team had not cross-examined witnesses apart from putting 24 questions to the plaintiffs’ acoustics expert about his testing methods and the duration of tram passes. It called no evidence. The team’s attendance during the evidence had not contributed to its legal submissions, which the judge said had assisted the court.
The judge declined to award costs for all 16 days, concluding that the Attorney General’s participation during the evidence was unnecessary to meet his entitlement to take part in the constitutional question. She said the five-day allocation had no scientific basis, but considered it fair in the circumstances. At the hearing, the defendants had consented to there being no costs order between themselves and the plaintiffs; that was separate from the order on the Attorney General’s application.